[2024] KEELC 535 (KLR)
The court determined that it could not proceed to a substantive ruling because the notice of motion dated 8/07/2023, which is the subject of subsisting interim orders, is missing from the court record. Furthermore, the respondent appears not to have addressed this motion, focusing instead on the amended originating...
Source-derived case information.
- Citation
- [2024] KEELC 535 (KLR)
- Parties
- Applicant: Joyce Atieno Mwok; Applicant: Catherine Grace Aloo; Respondent: Hillington Arum Also Known As Hallington
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons 2 of 2023
- Procedural Posture
- Environment and Land Originating Summons / Ruling on Directions Prior to Substantive Determination
- Outcome
- Mention for further directions; no substantive determination made.
- Judges
- AY Koross
- Legal Topics
- Originating Summons Procedure, Missing Court Documents, Interim Orders, Transfer of Files
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Atieno Mwok
Applicant
Catherine Grace Aloo
Applicant
Hillington Arum Also Known As Hallington
Respondent
Procedural Posture
Environment and Land Originating Summons / Ruling on Directions Prior to Substantive Determination
Legal Issues
- 1 Whether the correct notice of motion is before the court for determination.
- 2 Whether the parties have addressed the court on the relevant applications dated 7/7/2023 and 8/7/2023.
- 3 Whether the court can proceed to a substantive ruling in the absence of the relevant notice of motion.
Ratio Decidendi
The court determined that it could not proceed to a substantive ruling because the notice of motion dated 8/07/2023, which is the subject of subsisting interim orders, is missing from the court record. Furthermore, the respondent appears not to have addressed this motion, focusing instead on the amended originating summons. To ensure substantive justice and procedural fairness, the court directed the applicants' counsel to address the court on both the notices of motion dated 7/7/2023 and 8/7/2023 before any substantive determination can be made.
Court Disposition
Mention for further directions; no substantive determination made.
Orders
- Applicants’ counsel to address the court on the notices of motion dated 7/7/2023 and 8/7/2023.
- Matter mentioned for further directions on 12/02/2024.
Full Case Text
Judgment text and source record
23 paragraphs
Mwok & another (Suing as executors and administrators of the Estate of Paul Naboth Mwok-Handa - Deceased) v Arum Also known as Hallington (Enviromental and Land Originating Summons 2 of 2023) [2024] KEELC 535 (KLR) (8 February 2024) (Ruling)
Neutral citation: [2024] KEELC 535 (KLR)
Republic of Kenya
In the Environment and Land Court at Siaya
Enviromental and Land Originating Summons 2 of 2023
AY Koross, J
February 8, 2024
Between
Joyce Atieno Mwok
1st Applicant
Catherine Grace Aloo
2nd Applicant
Suing as executors and administrators of the Estate of Paul Naboth Mwok-Handa - Deceased
and
Hillington Arum Also Known As Hallington
Respondent
Ruling
1. After directing parties to canvass the notice of motion dated 7/7/2023 by written submissions, this court now finds itself in the unfortunate position in which it has to deliver a ruling on further directions instead of a substantive ruling.
2. The turn of events has been occasioned by several reasons and most importantly, there appears to be a notice of motion dated 8/07/2023 that apparently should be the subject for determination and not the one dated 7/07/2023. The subsisting interim orders that were issued by my brother Okongo J in Kisumu ELCOS E001/2023 before the original file was eventually transferred to this court is in respect of the notice of motion dated 8/07/2023.
3. From the court record, this particular notice of motion is missing and the only document in the court record dated 8/07/2023 is the amended originating summons (OS).
4. It is not lost to this court that the respondent filed a replying affidavit deposed on 26/09/2023 in respect of this amended OS and not on the notice of motion. Similarly, the bulk of his submissions dated 4/10/2023 are on this amended OS and it is probable that the respondent is not privy of the motion dated 8/07/2023.
5. In the circumstances and bearing in mind that this court has to carry out substantive justice in rendering its decision, I find that it is imperative that the applicants’ counsel do address this court on the notices of motion dated 7/7/2023 and 8/7/2023. Mention on 12/02/2024 for further directions.It is so ordered.
DELIVERED AND DATED AT SIAYA THIS 8TH DAY OF FEBRUARY 2024. HON. A. Y. KOROSSJUDGE08/2/2024Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:Mr. Akech for the applicantsN/A for the respondentCourt assistant: Ishmael Orwa